Any debate about US Supreme Court ethics reform that is solely based on individual justices’ alleged misconduct, partisan rhetoric, or separation of powers arguments misses the forest for the trees. The real problem is that the Supreme Court lags behind ethics standards in the executive and legislative branches by over 60 years.
On May 2, I testified before the US Senate Committee on the Judiciary during a hearing on Supreme Court ethics reform. The court’s legitimacy relies on public acceptance of its decisions, so ethics is extremely important. And yet, the Supreme Court is severely lacking in ethical rules and procedures compared to the other branches of our federal government.
Voters have a right to know that the elected and appointed officials who write, implement, and interpret the laws that govern this land are prioritizing public good, not their own personal interests. Strong ethics laws provide voters with this knowledge, and set clear guidelines for officials to follow.
The Supreme Court has at least four lessons to learn about strong ethics laws from what its co-equal branches of government have developed since the 1960s.
Investigation and Enforcement
First, no one body, office, or official is designated to provide ethics advice to justices and conduct ethics investigations. When those who serve as the highest judicial authority in the land face credible allegations of ethics violations—which would be enforced against any other member of the judiciary and even the rest of the federal government—ethics investigations still don’t occur. Compare this to organizations such as the Congressional Ethics Committees, Office of Government Ethics, inspectors general, and designated ethics officials at each agency who manage ethics training and compliance programs across the executive and legislative branches every day.
The lack of an enforcement body means no clear pathway to investigate the various ethics scandals that have recently come to light: the 2022 leak of the decision in Dobbs vs. Jackson Women’s Health Organization, the allegation that a justice leaked another opinion, and omissions of lucrative real estate deals from financial disclosure reports of two justices.
To the extent these matters were investigated at all, the fact gathering was conducted by random court staff who do not have any expertise in ethics or investigations.
Code of Conduct
Second, the Supreme Court shockingly lacks a code of conduct—something that would formally define and prohibit ethical misdeeds. By contrast, the executive and legislative branches have both adopted comprehensive codes to prohibit conflicts of interest to support public trust.
This is not to say a code of conduct is absent from the entire judicial branch. Most federal judges adhere to the Judicial Conference’s regulations and its Code of Conduct for US judges—a set of aspirational rules. There is also a judicial discipline process.
However, the Judicial Conference doesn’t formally govern the highest court in the land—only the lower federal courts—meaning only our most senior and powerful judges can evade oversight of ethics issues that may arise.
Third, Supreme Court justices don’t disclose details on travel paid for by private parties—to the extent and frequency that members of Congress report such travel. This might lead to public perception that undue influence is being exerted by the provider of this free travel and, however far from the truth this may be, that the officials in question are giving deference to a wealthy special interest.
Finally, Supreme Court justices can decide entirely for themselves when to recuse from cases that may involve a conflict of interest, and whether to explain the basis for their decision. This contrasts with the executive branch, where the agency’s ethics officials provide specific advice to senior officials about matters where recusal is needed, and actions that can be taken to resolve any conflicts.
These four gaps in Supreme Court ethics show that any meaningful discussion about what ethics reforms are needed should compare the court with the other branches of government instead of comparing the conduct of certain justices. Public trust is essential for a healthy democracy, and robust ethics laws are essential for public trust. The Supreme Court should follow the lead of the other branches of government. It should use the current environment as an opportunity not to circle the wagons, but to address longstanding flaws that have damaged the court’s reputation and diminished public confidence that the justices genuinely aim to serve the people.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Kedric Payne is vice president, general counsel, and senior director for ethics for the Campaign Legal Center.
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